On 2014-05-17 15:15, Steven D'Aprano wrote:
On Sat, 17 May 2014 10:29:00 +0100, Robert Kern wrote:
One can state many things, but that doesn't mean they have legal effect.
The US Code has provisions for how works become copyrighted
automatically, how they leave copyright automatically at the end of
specific time periods, how some works automatically enter the public
domain on their creation (i.e. works of the US federal government), but
has nothing at all for how a private creator can voluntarily place their
work into the public domain when it would otherwise not be. It used to,
but does not any more.
The case for abandonment was stated as "well settled" in 1998 (Micro-Star
v. Formgen Inc). Unless there has been a major legal change in the years
since then, I don't think it is true that authors cannot abandon
copyright.
Good old Micro-Star v. Formgen Inc. A perennial favorite. No, that case did not
settle this question. There is a statement in the opinion that would suggest
this, but (and this seems to be a reoccurring theme) it's inclusion in the
opinion did not create precedent to that effect. The statement that you refer to
is, as far as my NAL eyes can tell, what the lawyers call "dictum": a statement
made by a judicial opinion but is unnecessary to decide the case and therefore
not precedential. FormGen explicitly registered the copyright to the works in
question, and the case was decided on whether or not the
Micro-Star-redistributed works counted as derivative works (yes). Now, if the
case were about an author that affirmatively dedicated his work to the public
domain and then sued someone who redistributed it, then such a statement would
have a precedential effect (because then the judge would decide in favor of the
defendant on the basis of that statement). The quote that you refer to
references a previous case, which follows similar lines, and also predates the
"automatic copyright" regime post-Berne Convention, so it's not even clear to me
that it should have been precedential to Micro-Star.
Even if this case did so decide (which, I will grant it more or less did later
by codifying such a rule in their jury instructions for such cases), it would
only have effect in the 9th Circuit of the US and not even in the rest of the
US, much less worldwide. Why bother when the CC0 gives you the desired effect
with more assurance to your audience?
For a private individual to say about a work they just created that
"this work is in the Public Domain" is, under US law, merely an
erroneous statement of fact, not a speech act that effects a change in
the legal status of the work. For another example of this distinction,
saying "I am married" when I have not applied for, received, and
solemnified a valid marriage license is just an erroneous statement of
fact and does not make me legally married.
There may be something to what you say, although I think we're now
arguing fine semantic details.
Sure, it's the law. Fine semantic details are important. However, the difference
between speech acts and statements of fact is a pretty gross semantic
distinction and not just splitting semantic hairs. The act of making some
statements (e.g. declaring that a work you own the copyright to is available
under a given license) actually makes a change in the legal status of something.
Most statements don't. Which ones do and don't are defined by statute and (in
common law countries like the US) court decisions. Deciding which is which is
often hairy, but that's an epistemological problem, not a semantic one. :-)
See:
https://en.wikipedia.org/wiki/Wikipedia:Granting_work_into_the_public_domain
To play Devil's Advocate in favour of your assertion, it may be that
abandoning copyright does not literally put the work in the public
domain, but merely makes it "quack like the public domain". That is to
say, the author still, in some abstract but legally meaningless sense,
has copyright in the work *but* has given unlimited usage rights. (I
don't actually think that is the case, at least not in the US.)
It's this tiny bit of residual uncertainty that leads some authorities to
say that it is "hard" to release a work into the public domain,
particularly in a world-wide context, and that merely stating "this is in
the public domain" is not sufficient to remove all legal doubt over the
status, and that a more overt and explicit release *may* be required.
Hence the CC0 licence which you refer to. The human readable summary says
in part:
The person who associated a work with this deed has dedicated
the work to the public domain by waiving all of his or her
rights to the work worldwide under copyright law, including
all related and neighboring rights, to the extent allowed by
law.
You can copy, modify, distribute and perform the work, even
for commercial purposes, all without asking permission.
http://creativecommons.org/publicdomain/zero/1.0/
while the actual legal licence comes in at almost 800 words. This is
basically the same as "I release this to the public domain" only longer.
Quite so. Except that the CC0 statement may actually survive probate court if
your heirs decide that whatever you released is valuable enough to claw back.
Yes, your heirs can disregard many of the statements (even some bona fide speech
acts!) that you make during your life if they can demonstrate that it recklessly
diminished their inheritance. A simple statement that a work is in the public
domain is much more risky in that situation because it does not fall back on
standard licensing law when the abandonment of copyright fails. The CC0 has your
back in that case.
(The CC0 licence is longer than you might expect, because it is assumed
that it may have to apply in countries where you *really cannot*
relinquish copyright. But we're specifically talking about the US, where
the 9th Circuit says you can.)
The 9th Circuit speaks for the 9th Circuit, not the entire US jurisdiction. They
often wish otherwise, but there you go. :-)
Relinquishing your rights can have some effect, but not all rights can
be relinquished,
Outside of the US, so-called "moral rights" or "reputation rights" cannot
generally be relinquished, except perhaps in work-for-hire and perhaps
not even then. (E.g. if you're a ghost writer.) The situation in the US
is a bit murky -- there are no official moral rights per se, and
copyright only controls usage rights such as copying, distribution and so
forth. But this doesn't mean that you can (for example) claim authorship
of a public domain work unless you actually wrote it.
In any case, we're discussing copyright, not other rights.
and this is not the same as putting your work into the
public domain.
One might "not be the same" while still being "effectively the same". For
example, the U.S. Copyright Office states that "one may not grant their
work into the public domain. However, a copyright owner may release all
of their rights to their work by stating the work may be freely
reproduced, distributed, etc." as if it were in in the public domain.
I agree. The CC0 is about the closest that you can get to this. I enter this
discussion primarily to contest the assert that the simple, one-sentence "this
work is in the public domain" declarations will reliably have this effect.
<snip the rest where we are more or less agreeing about the CC0>
--
Robert Kern
"I have come to believe that the whole world is an enigma, a harmless enigma
that is made terrible by our own mad attempt to interpret it as though it had
an underlying truth."
-- Umberto Eco
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